Wakeman v. Dixon

• Decision Date: 24 January 2006
• Docket Number: No. 1D05-0103.,1D05-0103.
• Citation: 921 So.2d 669
• Parties: Mary L. WAKEMAN, Appellant, v. Dené B. DIXON, Appellee.
• Court: Florida District Court of Appeals

Page 669

921 So.2d 669

Mary L. WAKEMAN, Appellant, v. Dené B. DIXON, Appellee.

No. 1D05-0103.

District Court of Appeal of Florida, First District.

January 24, 2006.

Rehearing Denied February 28, 2006.

Paula L. Walborsky and Mary A. Kane of Walborsky and Kane, P.A., Tallahassee, for Appellant.

Kristin Adamson of Novey, Mendelson & Adamson, Tallahassee, for Appellee.

PER CURIAM.

Mary L. Wakeman appeals a final order dismissing with prejudice her amended complaint seeking to enforce several agreements with Dené B. Dixon, appellee, under which appellant argued she was granted certain parental rights and responsibilities, including visitation, with respect to two minor children born to Dixon. We agree with the trial court that, under Florida law, absent evidence of detriment to the child, courts have no authority to grant custody or to compel visitation by a person who is not a natural parent and that agreements providing for visitation by a non-parent are unenforceable. Accordingly, we affirm.

The following facts are based on the factual allegations in the amended complaint and documents attached thereto, which we are required to accept as true. See Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734 (Fla.2002); Aguila v. Hilton, Inc., 878 So.2d 392, 395 (Fla. 1st DCA 2004).

In 1989 Wakeman and Dixon began to live together. In November 1997, the parties jointly entered into a sperm donation agreement with the sperm donor. In this agreement, both Wakeman and Dixon are each described as "recipient," "mother" and "co-parent." By this agreement, the sperm donor relinquished parental rights and agrees that the "recipients" and "co-parents" will be responsible for all decisions regarding a child conceived through sperm donation. Among the other provisions, in the sperm donation agreement, Wakeman and Dixon agreed that in the event

the Mother of any Child[ren] born through artificial insemination procedure is deceased or legally disabled and consequently no longer able to care for the Child[ren], it would be in the best interest of the Child[ren] to remain with the Co-Parent. As to any Child[ren] born to Dené Dixon, Mary L. Wakeman is the Co-Parent. As to any Child[ren] born to Mary L. Wakeman, Dené B. Dixon is the Co-Parent. It is contemplated by the parties that the Co-Parents will become "psychological parents" to the Child[ren], and the Child[ren] shall reside with the Mother and Co-Parent from the time of birth.

As a result of the sperm donation, Dixon became pregnant. After the birth of the child in May 1999, Dixon and Wakeman entered into another agreement in which each party acknowledged that the decision to conceive the child was a "joint decision" which was based on the commitment of each to parent to "jointly parent the child." In this agreement, referred to by the parties as the co-parenting agreement, Wakeman agreed to contribute to the financial support of the child and both parties indicated their intent to "equally share in providing the child" with the necessary support until majority. Both parties also agreed that, while Wakeman is not a biological parent, she is

a de facto parent who has participated in all phases of pre-natal care, and who plans to provide [the child] with a stable environment and psychological parenting relationship. Mary's relationship with [the child] should be protected and promoted to preserve the strong emotional tie that will develop between them.

The co-parenting agreement also provides that, in the event the parties no longer reside together, they will continue to provide for the child in the manner described in the agreement and that each party will facilitate a close relationship with the other and will continue to raise the child in a joint manner.

In addition, Dixon executed a pre-need designation of guardianship naming Wakeman as the guardian of the child and a medical and dental consent form whereby Wakeman was granted authority to make decisions regarding the child's medical and dental health. Dixon also designated Wakeman as her attorney in fact to manage the affairs relating to the child and as the health care surrogate for the child.

Pursuant to an amended sperm donation agreement, Dixon became pregnant with a second child who was born in December 2001. After the birth, another co-parenting agreement, identical to the one previously executed save for the reference to the child's name and date of birth, was executed by Wakeman and Dixon regarding the second child. In addition, a pre-need guardianship was established for the second child naming Wakeman as guardian and medical/dental consent and health surrogacy forms were executed authorizing Wakeman to make all medical and dental decisions regarding the second child. In February 2004, Wakeman and Dixon executed an affidavit of domestic partnership to allow Dixon and the two minor children to receive coverage under Wakeman's health insurance.

In May 2004, Wakeman and Dixon ceased residing together, and Dixon relocated to Brooksville, Florida with the two children. Wakeman alleges that she has not been in personal contact with the children since May 25, 2004, and has not spoken to them since a telephone conversation on June 3, 2004.

Wakeman filed a complaint against Dixon for breach of contract, breach of fiduciary duty, residency and child support, and declaratory judgment. In brief, Wakeman was seeking a declaration of parental rights to the two children born to Dixon. Dixon moved to dismiss the complaint arguing that Wakeman had no enforceable legal rights regarding the children. Following a hearing, the trial court granted the motion to dismiss. In the order, the trial court noted that Wakeman and the guardian ad litem, who appeared as next friend for the minors, made a compelling argument that it is in the best interests of the children to enforce the co-parenting agreements. The trial court ruled, however, that under Florida statutory and case law, it possessed no authority to compel visitation between a child and a person who is not a parent. Further, the court ruled that Florida law does not recognize a claim for specific performance of a contract for visitation with an unrelated third party.

Because we are considering a question of law in determining whether the allegations of a complaint state a cause of action, we review an order granting a motion to dismiss for failure to state a cause of action by the de novo standard of review. Aguila, 878 So.2d at 395.

On appeal, Wakeman argues that, under the agreements between the parties, she has been granted the status of a parent for the two minor children born to Dixon and that the trial court erred in not extending the protections of chapter 61, Florida Statutes, to her and the two children. We find that the appellant's arguments lack support in Florida law.

The Florida Supreme Court has held that, under the privacy provision in the Florida Constitution,¹ a third party, even a grandparent, cannot be granted by statute the right to visitation with minor children, because, absent evidence of a demonstrable harm to the child, such a grant unconstitutionally interferes with a natural parent's privacy right to rear his or her child. See Beagle v. Beagle, 678 So.2d 1271 (Fla.1996)(holding that the state may not properly intervene in parental decision-making absent significant harm to the child threatened by or resulting from those decisions); Von Eiff v. Azicri, 720 So.2d 510 (Fla.1998)(holding that, because no compelling state interest underlies grandparent visitation statute, such a statute is unconstitutional as an impermissible government interference in a parent's fundamental right to rear a child); Richardson v. Richardson, 766 So.2d 1036, 1039-40 (Fla.2000)(holding unconstitutional a statute authorizing courts to recognize grandparents as having the same standing as parents for evaluating what custody arrangements are in the best interest of the child where the child actually resided with the grandparents in a stable relationship). In adopting the explicit constitutional right of privacy in article I, section 23, Floridians "opted for more protection from governmental intrusion" than was afforded under the federal constitution. Beagle, 678 So.2d at 1275 (quoting Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544, 548 (Fla.1985)). Thus, "[t]he state constitutional right to privacy is much broader in scope, embraces more privacy interests, and extends more protection to those interests than its federal counterpart." Von Eiff, 720 So.2d at 514. In addition to the constitution barrier, the court has recognized that, in granting custody or visitation rights to non-parents based on the best interest of the child:

[T]here is an inherent problem with utilizing a best interest analysis as the basis for government interference in the private lives of a family, rather than requiring a showing of demonstrable harm to the child. It permits the State to substitute its own views regarding how a child should be raised for those of the parent. It involves the judiciary in second-guessing parental decisions. It allows a court to impose its own notion of the children's best interests over the shared opinion of these parents, stripping them of their right to control in parenting decisions.

Id. at 516 (citations and quotations omitted). For similar reasons, Florida courts also have held that agreements granting visitation rights to a non-parent are unenforceable. See Lamaritata v. Lucas, 823 So.2d 316 (Fla. 2d DCA 2002); Taylor v. Kennedy, 649 So.2d 270 (Fla. 5th DCA 1994).

In Taylor, Robert Affourit, who lived with a woman and her child for several years, sought visitation with a child who was not his biological child and to whose mother he was never married. After the break-up between Affourit and the mother, the mother sought various injunctions against him. As part of an agreement dissolving the injunctions, the mother agreed to...